Principal Kannur Medical College v. Admission Supervisory Committee for Professional Colleges in Kerala and E.T. Jayaraj

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 10TH DAY OF JUNE 2020 / 20TH JYAISHTA, 1942** ## **WP(C).No.26788 OF 2019(W)** ## **PETITIONER:** **THE PRINCIPAL KANNUR MEDICAL COLLEGE, ANJARAKKANDI,KANNUR,KERALA-670612.** |||**BY ADVS.**| |---|---|---| |||**SRI.GEORGE POONTHOTTAM (SR.)**| |||**SMT.NISHA GEORGE**| |**RESPONDENTS**<br>**:**||| |**1**||**THE ADMISSION SUPERVISORY COMMITTEE**| |||**FOR PROFESSIONAL COLLEGES IN KERALA,**| |||**T.C.15/1553-4,PRASANTHI BUILDINGS,M.P.APPAN ROAD,**| |||**VAZHUTHACAUD,THIRUVANANTHAPURAM-695014,**| |||**REPRESENTED BY THE CHAIRMAN.**| |**2**||**E.T.JAYARAJ,**| |||**S/O.P.V.NARAYANAN,SIVANGANGA,**| |||**PALLIKUNNU.P.O,KANNUR DISTRICT-670004.**| |||**R1 BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY**| |||**COMMITTEE FOR PROF. COLLEGES**| |||**R2 BY ADV. SRI.KALEESWARAM RAJ**| |||**R2 BY ADV. SRI.VARUN C.VIJAY**| |||**R2 BY ADV. KUM.A.ARUNA**| |||**R2 BY ADV. KUM.THULASI K. RAJ**| |||**R2 BY ADV. SMT.MAITREYI SACHIDANANDA HEGDE**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0806-2020, THE COURT ON 10-06-2020 DELIVERED THE FOLLOWING:** WP(C) No.26788/2019 -:2:- ## **J U D G M E N T** Dated this the 10[th ] day of June, 2020 ## _**Shaffique, J.**_ The admissions granted by the Kannur Medical College to the MBBS Course in that college, in the year 2016-17, were found to be illegal and contrary to law by the Admission Supervisory Committee (hereinafter also referred to as the 'ASC') constituted in terms of Section 4 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 Act, [Act 19 of 2006] (now repealed) through an order dated 14.11.2016. The Supreme Court refused to interfere with this order and it became final. As a consequence, the admissions granted to nearly 150 students had to be cancelled. Though the State promulgated an ordinance to regularize the admission, the said ordinance was declared unconstitutional by the Supreme Court. 2. On 25.07.2018, there was a recommendation by the WP(C) No.26788/2019 -:3:- ASC to the Kerala University of Health Sciences, to withdraw the affiliation/recognition of Kannur Medical College for the academic year 2018-2019. These proceedings were found to be in order by a Division Bench of this Court through a judgment dated 1.8.2018 in W.P. (C) No. 25895 of 2018. The matter was carried to the Supreme Court of India through S.L.P (C) No. 23225 of 2018 and connected cases. A consent order was passed on 29.08.2018 in S.L.P (C) No. 23225 of 2018 and connected cases which order is on record in this case. We are concerned here only with the 1[st] direction that forms part of the consent order dated 29.08.2018 which provides that the college shall return an amount equivalent to the double of the amount collected from the students together with refund of the fee deposited by each one of the 150 students, with the college by 04-09-2018. There was a further direction that the ASC shall ascertain and report as to whether the amounts in question have been refunded, as directed. On 1.9.2018, the ASC filed its report which _inter alia_ suggested that the amounts directed to be paid/refunded to each of the students have not been paid/refunded in terms of the directions issued by the Supreme Court. Therefore, a further direction was issued by the WP(C) No.26788/2019 -:4:- Supreme Court on 4.10.2018 through which it was directed that the ASC shall determine the amount payable to each one of the students. The ASC has passed individual orders in respect of claims raised before it by the students/guardians. In this writ petition, we are concerned with an order passed by the ASC in terms of the direction issued by the Supreme Court, determining the amount payable by the petitioner college on account of the fees and other amounts collected from the applicant. 3. The question of maintainability of this Writ Petition under Article 226 of the Constitution of India having been questioned at the admission stage, a Division Bench of this Court, to which one amongst us (myself) was a party, came to the conclusion through an order dated 20.2.2020, that the Writ Petition was maintainable. Therefore, we do not propose to go into that issue again. 4. Before we proceed to determine the correctness or otherwise of the impugned order, we must notice the observation of the Supreme Court in the order dated 4.10.2018 that the quantum of amount collected by the College from each student and what amount has been refunded is a seriously WP(C) No.26788/2019 -:5:- disputed fact and also notice the following direction issued to the Admission Supervisory Committee (ASC) by the Supreme Court. _“The ASC_ _**to consider the material which may be placed on record by the respective parties and take a decision in accordance with law on the basis of the evidence adduced** in each of the case with respect to each of the students_ . (emphasis is ours) Thus it is clear that the direction given to the ASC was to individually determine the case of each student, in accordance with law, having due regard to the material which may be placed on record and the evidence adduced by the parties. Since the entire exercise undertaken by the ASC was in terms of the aforesaid direction of the Supreme Court, it goes without saying that the ASC was bound to conclude its determination strictly in terms of the direction issued by the Supreme Court. 5. We have heard Sri.George Poonthottam, learned Senior Counsel and Smt.Nisha George for the petitioner, Smt.Mary Benjamin, learned Standing Counsel for the 1[st] respondent (the Admission and Fee Regulatory Committee) and Smt.Aruna.A, learned Counsel appearing for the 2[nd] respondent, the complainant before the 1[st] respondent Committee. The learned Senior Counsel for the petitioner would contend that the WP(C) No.26788/2019 -:6:- ASC had determined the issue based on mere surmises and conjectures and that there was no reliable material before the Committee to hold that the amount in question was payable to the complainant/student. He states that the college has not received any amount other than the admitted amount of `11.65 lakhs and therefore no further liability could be fastened on the college since an amount of `23.30 lakhs being the double the amount of `11.65 lakhs has already been refunded. The learned Counsel appearing for the ASC would point out that the ASC which was a Committee under Act 19 of 2006 has not been impleaded in this writ petition and this, according to her is a fatal defect. She states that the first respondent herein is the body constituted under the enactment which repealed and replaced Act 19 of 2006, namely Act 15 of 2017. On merits, she would contend that the College had indulged in severe malpractices resulting in the orders against them which have already been noticed above. She would urge that we must not interfere with the orders which have been issued by the ASC after careful scrutiny of all materials placed before it. The learned counsel for the student/applicant would support the findings in the order and WP(C) No.26788/2019 -:7:- urge that we should not interfere with the order. Both sides have produced certain additional documents, which are received in evidence. 6. We must first consider the question as to whether the non-impleadment of the ASC should be a ground to refuse consideration of the matter on its merits. We are of the considered opinion that the ASC is not a necessary party to these proceedings since the Committee is not required to justify its findings before this Court in any manner. We are fortified in taking such a view in the light of the law laid down by a 3 Judge Bench of the Supreme Court in _**M.S Kazi v. Muslim Education Society & Others**_ [(2016) 9 SCC 263]. 7. The ASC has, by order dated 4-06-2019 determined the amount payable to student/complainant to be a sum of `59,05,000/- after deducting the amount of `23,30,000/- already paid by the college. We have gone through the order impugned before us and perused the material produced before the ASC and the additional documents in order to determine whether the order passed by the ASC was sustainable and in accordance with the directions issued by the Supreme Court. WP(C) No.26788/2019 -:8:- ## 8. The ASC has considered the following material/documents to reach its conclusion regarding the amount payable by the college to the student / complainant. |**Sl.**<br>**No.**|**Particulars**|**Document**<br>**number**<br>**referred to in**<br>**the order of the**<br>**ASC**| |---|---|---| |1|Proof affiavit of CW1, E.T.Jayaraj, father of the<br>student.|P6| |2|Statement of Central Bank of India, Kannur<br>evidencing withdrawal of `.8,00,000/- on<br>6/9/2016.|A1| |3|Certificate evidencing receipt of a loan for<br>`25,00,000/- from Central Bank of India on<br>9/9/2016.|A2| |4|2 FD closure receipt from Kannur Town<br>Service Co-operative Bank evidencing<br>withdrawal of`1,50,000/- each on 9/9/2016,<br>by CW1|A3,A3(a)| |5|6 FD closure receipt from Kannur Town<br>Service Co-operative Bank evidencing<br>withdrawal of`1,00,000/- each on 22/9/2016,<br>by students mother|A4 to A4(e)| |6|Statement of Calicut Co-operative Bank<br>evidencing withdrawal of `4,00,000/- on<br>7/9/2016, by mother in law and father in law<br>of the Applicant|A5| |7|Certificate from Central Bank of India showing<br>withdrawal of `50,000/- by Mr.Babu on<br>6/9/2016 and the endorsment that the said<br>amount was given as loan to CW1.|A6| ## 9. The parents of the student contended they had paid a total amount of `47,00,000/- to the college authorities. After deducting a sum of `11,65,000/- which was the fee (including WP(C) No.26788/2019 -:9:- hostel fee), the Committee held that the amount collected was `35,35,000/-. In terms of the Supreme Court order, the college was required to refund the fees and double the amount collected over and above the fees. Therefore, the Committee determined the amount to be refunded in the following manner:- |Sl.<br>No.|Particulars|Amount| |---|---|---| |1|Fee including hostel fee|`11,65,000/-| |2|Twice the amount collected over and above<br>the fee (`35,35,000 x 2)|`70,70,000/-| |3|Amount already refunded|`23,30,000/-| |4|Balance payable (1 + 2 - 3)|`59,05,000/-| 10. In order to prove the source of `47 lakhs, the affidavit referred to above had been filed by the father of the student. The Committee accepted the version with reference to Exts.A1 to A5 and the submission of CW1 that he had received `50,000/- from his friend Sri.Babu, and that he had `50,000/- as cash. The Committee observed that since the parents of the student were financially sound, they are capable of arranging such funds. 11. As already noticed, the Supreme Court had clearly indicated in its order dated 04-10-2018 that the determination of the amount payable shall be on the basis of the evidence and the materials placed before the Committee. We don't find any WP(C) No.26788/2019 -:10:- reason to doubt the genuineness of Exts.A1 to A5. It was contended by the petitioner that there was no evidence to prove withdrawal of `25 lakhs covered by Ext. A2. The 2[nd] respondent had produced an additional document [R2(d)] to prove that `25 lakhs was withdrawn on 9/9/2016. The contention of the college that Ext.A5 cannot be relied upon to prove the source, cannot be accepted. The said source has been specifically pleaded and proved. Ext.A6 also has been proved. 12. In the said circumstances, we are of the view that the source of funds available with the student/parents at the relevant time stands proved. We don't find any error being committed by the Committee in adjudicating the above claim. In the result, the writ petition is dismissed. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P.** Rp True copy **JUDGE** P.S. To Judge WP(C) No.26788/2019 -:11:- ## **APPENDIX OF WP(C) 26788/2019** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN SLA(C)NO.23225/2018 DATED 29.08.2018.** - **EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE HON'BLE SUPREME COURT IN M.A.NO.2354 OF 2018 IN SLA(C)NO.23225/2018 DATED 04.10.2018`** - **EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 06.06.2018 FORWARDED VIA E-MAIL BY THE 2ND RESPONDENT TO THE CHAIRMAN OF THE ADMISSION SUPERVISORY COMMITTEE.** - **EXHIBIT P4 TRUE COPY OF THE OBJECTION/STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE ADMISSION SUPERVISORY COMMITTEE.** - **EXHIBIT P5 TRUE COPY OF THE UNDERTAKING OF THE 2ND RESPONDENT AND HIS DAUGHTER DATED 18.01.2018.** - **EXHIBIT P5 A TRUE COPY OF THE RECEIPT DATED 24.09.2016 ISSUED BY THE COLLEGE FOR THE REMITTANCE OF FEE FOR RS.11.65 LAKHS.** - **EXHIBIT P6 TRUE THE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE COPY OF THE BANK STATEMENT.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.ASC 100/16/MBBS/KMC DATED 06.09.2016 AND ISSUED ON 09.09.2016 BY THE ADMISSION SUPERVISORY COMMITTEE.** **EXHIBIT P8 TRUE COPY OF THE ORDER NO.ASC(P)52/18/HO/TVPM/MBBS/KMC DATED 04.06.2019 ISSUED BY THE ADMISSION SUPERVISORY COMMITTEE.** WP(C) No.26788/2019 -:12:- ## **EXHIBIT P9** **TRUE COPY OF THE ERRATUM NO.ASC(P)52/18/HO/TVPM/MBBS/KMC DATED 10.06.2019 ISSUED BY THE ADMISSION SUPERVISORY COMMITTEE.** **RESPONDENTS' EXHIBITS:** **EXHIBIT R2(a)** **TRUE COPY OF THE REPORT SUBMITTED BY THE 1ST RESPONDENT WITHOUT ANNEXURES BEFORE THE HON'BLE SUPREME COURT DATED 4.9.2018.** **EXHIBIT R2(b) TRUE COPY OF THE ORDER DATED 19.9.2017 IN CRL M.C NO.1161/2017 PASSED BY THE COURT OF SESSIONS, THALASSERY.** **EXHIBIT R2(c) TRUE COPY OF THE OBJECTION DATED 10.12.2018 FILED BY THE 2ND RESPONDENT.**